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Villarreal v. State

Court of Appeals of Texas, Fourth District, San Antonio

December 27, 2019

David Asa VILLARREAL, Appellant
v.
The STATE of Texas, Appellee

          From the 186th Judicial District Court, Bexar County, Texas Trial Court No. 2016CR0549 Honorable Jefferson Moore, Judge Presiding

          Sitting: Sandee Bryan Marion, Chief Justice Rebeca C. Martinez, Justice Luz Elena D. Chapa, Justice

          OPINION

          Sandee Bryan Marion, Chief Justice.

         A jury convicted appellant David Asa Villarreal ("Villarreal") of murder with a repeat offender enhancement and sentenced him to confinement for sixty years. In two issues on appeal, Villarreal argues the trial court erred by admitting hearsay testimony and by limiting his ability to confer with counsel during an overnight recess in violation of his Sixth Amendment right to counsel. We affirm the trial court's judgment.

         Admission of Evidence

         In his first issue, Villarreal argues the trial court erred by admitting, over his hearsay objection, testimony regarding the contents of a text message sent on the night of the murder by the victim to Veronica Hernandez, a mutual friend of Villarreal and the victim. During Hernandez's direct examination, the following exchange occurred:

Q. [by the prosecutor] So when [Villarreal and the victim] got back, what happened after that?
A. [by Hernandez] [The victim] sent me a text and he said-
[DEFENSE COUNSEL]: Objection, hearsay, Your Honor. And lack of foundation, especially when it comes to cell phones and spoofing and phone numbers and who actually sent from what phone. I don't think the proper foundation has been laid for her to know exactly who sent what message.
THE COURT: It's overruled. Go ahead.
Q. [by the prosecutor] Being that you hung out with [the victim] a lot, were you familiar with his phone number?
A. [by Hernandez] Yes, ma'am.
Q. Did you have it programmed in your telephone[?]
A. Yes, ma'am.
Q. Did you text [the victim] a lot?
A. I did.
Q. Okay. And it was common for you guys to have conversations over text messages?
A. Yes, ma'am.
Q. Okay. So that night, did you end up spending the night?
A. No, ma'am.
Q. Why not?
A. He told me-[the victim] told me that [Villarreal] wanted to work things out, and he was trying to make peace with [Villarreal]. That was-
Q. Were they having problems in their relationship?
A. I guess so.
[DEFENSE COUNSEL]: Objection then to the speculation.
THE COURT: Overruled. Go ahead.

         As a prerequisite to presenting a complaint for appellate review, the record must show the complaint was made to the trial court by timely objection. Tex.R.App.P. 33.1(a)(1). Where the complaint raised on appeal does not comport with the trial objection, nothing is preserved for our review. Clark v. State, 365 S.W.3d 333, 339 (Tex. Crim. App. 2012); Huerta v. State, 933 S.W.2d 648, 650 (Tex. App.-San Antonio 1996, no pet.). "In addition, a party must object each time the inadmissible evidence is offered or obtain a running objection." Valle v. State, 109 S.W.3d 500, 509 (Tex. Crim. App. 2003). "An error in the admission of evidence is cured where the same evidence comes in elsewhere without objection." Id.

         Here, although the trial court overruled Villarreal's initial hearsay objection, Hernandez did not immediately testify regarding the contents of the victim's text message. Rather, after answering several additional questions regarding her familiarity with the victim's telephone number and the frequency of her communications with the victim, Hernandez eventually relayed the contents of the victim's text message in response to a different question. Villarreal objected to Hernandez's response to the latter question on the basis of speculation but not hearsay. Accordingly, because Villarreal failed to obtain a ruling on a running objection or to re-urge his objection to the testimony on the basis of hearsay, his hearsay complaint is not preserved. Villarreal's first issue is overruled.

         Sixth ...


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